ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR11-16
DATE: 20131003
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
Wesley D. Beatty and Brian J. Bencze, Crown Counsel
- and -
JOSEPH ARSENAULT
Applicant
Angela Chaisson and David Connally, Counsel for the Accused
HEARD: July 22 and 23, 2013
ellies j.
INTRODUCTION
[1] On July 22, 2013, more than 11 years from the date the charges were first laid, Mr. Arsenault was scheduled to stand trial on allegations that include attempted murder. He submits that his right to trial within a reasonable time under s. 11(b) of the Charter of Rights and Freedoms has been breached and asks the court to stay the prosecution. The Crown contends that 11 years is not an unreasonable length of time to get to trial and that the accused has not been significantly prejudiced by it. It argues that this case should join “the long line of other cases where very lengthy total delays, before reaching trial, have not resulted in any violation of s. 11(b) of the Charter”, to which Code J. recently added in R. v. Faulkner, [2013] ONSC 2373 (at para. 130).
[2] The central issue in this application is whether the Crown acted reasonably in deciding to wait for more than seven years for Mr. Arsenault to return to Canada on his own from South Korea, where he was teaching at the time he was charged, rather than taking any more active steps to bring him to trial, such as seeking extradition.
FACTUAL BACKGROUND
[3] On July 18, 1999 someone wired a spark plug from the engine of Bradley Burt’s car into the gas tank. On July 19, 1999 the Ontario Provincial Police began to suspect that Mr. Arsenault was that person. They obtained and executed a General Warrant under s. 487.01 of the Criminal Code and a warrant under s. 11 of the Controlled Drugs and Substances Act which were executed on August 26 and August 27, 1999, respectively, at Mr. Arsenault’s residence. A DNA Warrant was also later obtained and samples were taken from Mr. Arsenault on March 8, 2000. Charges were not laid, however, until May 22, 2002.
[4] In the meanwhile, the Crown learned that Mr. Arsenault was exploring the possibility of leaving the country to work elsewhere. In particular, on February 19, 2001, Mr. Arsenault testified in an unrelated proceeding that he had attended the Japanese and Korean embassies in Toronto for that purpose. In fact, the police contacted the Korean embassy to confirm that Mr. Arsenault had attended there and received a fax to that effect from the embassy.
[5] Mr. Arsenault succeeded in getting a job in South Korea and left Canada on November 15, 2001. He remained in Korea until December of 2009. On December 16 of that year, he was detained at the South Korean border while returning from a holiday in the Philippines because Canadian authorities had revoked his passport at the request of the police. He remained at the airport in South Korea until December 23, when he was able to fly to Canada after agreeing to repay the federal government for the cost of his flight. Upon his arrival at Toronto’s Pearson Airport, Mr. Arsenault was arrested on the present charges.
ISSUES
[6] With two exceptions, the Crown and the defence have agreed on the proper attribution of the delay between the date the charges were laid and the date the matter was scheduled for trial. One point of disagreement arises after the date of Mr. Arsenault’s arrest; the other precedes it. With respect to the former, the parties disagree concerning the proper attribution of the delay between May 6, 2013 and July 22, 2013. This is the period of time that elapsed when Mr. Arsenault’s previous counsel sought to set a date for trial (on May 6) and the first date upon which the court had available (July 22). The defence argues that this time should be characterized as institutional delay. The Crown argues that the defence has not proven that Mr. Arsenault’s previous lawyer was available on any earlier date. This period comprises approximately 1.5 months.
[7] By far the greatest period of delay in this case is the focus of the other point of disagreement between the Crown and the defence. The defence argues that all of the delay between the date the charges were laid and the date of Mr. Arsenault’s arrest, 7.9 years, is attributable to the Crown. The Crown contends that the delay was waived by the accused, forms part of the inherent time requirements of the case, or was due to Mr. Arsenault’s own actions.
[8] The Crown also argues that, even if the entire period of 7.9 years is attributed to it, the prejudice suffered by Mr. Arsenault is not outweighed by the societal interest in having these serious charges disposed of on their merits.
ANALYSIS
General Principles
[9] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. Of paramount importance to this application is the principle that the Crown has the obligation to bring an accused to trial. As Martin J. A. wrote in R. v. Bisson, 1983 1873 (ON CA), [1983] O.J. No. 3151, at para. 63:
An accused has no duty to bring himself to trial. The Crown has that duty.
See also R. v. Askov, 1990 45 (SCC), [1990] S.C.J. No. 106, paras. 57 and 63; R. v. MacDougall, 1998 763 (SCC), [1998] S.C.J. No. 74, at para. 49; R. v. Morin, 1992 89 (SCC), [1992] S.C.J. No. 25, at para. 62; R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26, at para. 11.
Analytical Framework
[10] The question to be answered is: at what point does the delay become unreasonable? The answer to that question is arrived at by looking at the length of the delay, subtracting any periods that have been waived by the defence, and then balancing the reasons for the delay, prejudice to the accused, and the interests that s. 11(b) seeks to protect: Godin, at para. 18. The court in Morin listed the factors to be considered as follows (at para. 31):
(1) the length of the delay;
(2) waiver of time periods;
(3) the reasons for the delay, including:
(a) inherent time requirements of the case,
(b) actions of the accused,
(c) actions of the Crown,
(d) limits on institutional resources, and
(e) other reasons for delay; and
(4) prejudice to the accused.
I propose to follow this framework, although not all of the factors may be relevant in this case.
[11] The accused has the legal burden of establishing a violation of s. 11(b) of the Charter: Morin, at para. 36. However, while the accused has the ultimate or legal burden of proof, the onus may shift. The Crown may have a secondary or evidentiary burden to put forth evidence or argument regarding long periods of delay occasioned by Crown conduct: R. v. Smith, 1989 12 (SCC), [1989] S.C.J. No. 119, at para. 28; Morin, at para. 33. The longer the delay, the more difficult it should be for a court to excuse it. Very lengthy delays may be such that they cannot be justified for any reason: Askov, at para. 69.
(Decision text continues exactly as in the source.)
Ellies J.
Released: 20131003
COURT FILE NO.: CR11-16
DATE: 20131003
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
JOSEPH ARSENAULT
Applicant
REASONS FOR DECISION
Ellies J.
Released: 20131003